Bare v. Commissioner of Social Security

Filing 26

MEMORANDUM AND OPINION. The Commissioner's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 1/27/2015. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARJORIE BARE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-133-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Marjorie Bare is before the
Court, represented by counsel, seeking review of the final decision of the
Commissioner of Social Security denying her Disability Insurance Benefits (DIB)
from her alleged onset date until February 5, 2010 pursuant to 42 U.S.C. § 423..
Procedural History
Plaintiff applied for benefits on September 24, 2010, alleging disability
beginning on August 14, 2008. (Tr. 13). After holding an evidentiary hearing, ALJ
Michael Scurry issued a finding that plaintiff became disabled on February 5,
2010. (Tr. 13-23). The Appeals Council denied review, and the decision of the
ALJ became the final agency decision. (Tr. 1). Administrative remedies have been
exhausted and a timely complaint was filed in this Court.

1

This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 13.

1

Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in determining plaintiff’s credibility.
2. The ALJ erred in forming plaintiff’s RFC.
3. The ALJ’s decision was not supported by substantial evidence.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning
of the applicable statutes. 2 For these purposes, “disabled” means the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).

“Substantial gainful activity” is work activity that involves doing

significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
2

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case,
the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.

2

Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or equals
one of the listed impairments, then the applicant is considered
disabled; if the impairment does not meet or equal a listed
impairment, then the evaluation continues. The fourth step assesses
an applicant's residual functional capacity (RFC) and ability to engage
in past relevant work. If an applicant can engage in past relevant
work, he is not disabled. The fifth step assesses the applicant's RFC,
as well as his age, education, and work experience to determine
whether the applicant can engage in other work. If the applicant can
engage in other work, he is not disabled.

Weatherbee v. Astrue , 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet or
equal one of the listed impairments acknowledged to be conclusively disabling; (4)
whether the claimant can perform past relevant work; and (5) whether the
claimant is capable of performing any work within the economy, given his or her
age, education and work experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue ,
573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v. Sullivan , 977 F.2d 391,
393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically

3

be found disabled if he or she suffers from a listed impairment, determined at
step three. If the claimant does not have a listed impairment at step three, and
cannot perform his or her past work (step four), the burden shifts to the
Commissioner at step five to show that the claimant can perform some other job.

Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also, Zurawski
v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an
“affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding
that the claimant is disabled…. If a claimant reaches step 5, the burden shifts to
the ALJ to establish that the claimant is capable of performing work in the
national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th
Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing for “substantial

4

evidence,” the entire administrative record is taken into consideration, but this
Court does not reweigh evidence, resolve conflicts, decide questions of credibility,
or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d
1384, 1390 (7th Cir. 1997). However, while judicial review is deferential, it is
not abject; this Court does not act as a rubber stamp for the Commissioner. See,

Parker v. Astrue , 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Scurry followed the five-step analytical framework described above. He
determined plaintiff had not been engaged in substantial gainful activity since the
date of her application. He found plaintiff had severe impairments of lumbar
degenerative disc disease with L5-S1 herniation, status post fusion, and obesity.
The ALJ determined these impairments did not meet or equal a listed
impairment.
The ALJ found plaintiff had the residual functional capacity to perform
work at the light level with some restrictions prior to February 5, 2010. (Tr. 16).
The ALJ found that after February 5, 2010, plaintiff had the residual functional
capacity to perform work at the light level with additional restrictions. (Tr. 21).
Based on the testimony of a vocational expert (VE), the ALJ found plaintiff was
unable to perform past work and prior to February 5, 2010, there were jobs that
existed in significant numbers in the national economy that plaintiff could have
performed. After February 5, 2010, the VE testified and the ALJ agreed that there
were no jobs in the national economy plaintiff could perform. (Tr. 22-23).

5

The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
1. Agency Forms
Plaintiff was born on March 8, 1964 and was forty-four years old on the
alleged onset date. (Tr. 107). She was insured for DIB through December 31,
2012. 3
According to plaintiff, her back injury, obesity, diabetes, high blood
pressure, and depression made her unable to work. She was five feet five inches
tall and weighed two hundred and eighty pounds. (Tr. 146). Plaintiff previously
worked as a cook in a nursing home and in a county jail. (Tr. 147). She took
several medications and as of September, 2010, she was taking Avandia, Byetta,
Glipizide, and Metformin for diabetes, Citalopram for depression, Metoprolol for
high blood pressure, Flexeril for muscle spasms, and Hydrochlorothiazide as a
diuretic. (Tr. 148).
Plaintiff submitted a Function Report in 2010. (Tr. 167-75). She stated that
she lived in her home with her son. Plaintiff’s back hurt so badly that she had
difficulty performing most basic tasks like laundry or cleaning the dishes. (Tr.
167). Most of her day was spent resting and she would occasionally make small
quick meals like frozen dinners or sandwiches. (Tr. 168-69). She was able to
The date last insured is relevant to the claim for DIB, but not the claim for SSI. See, 42 U.S.C. §§ 423(c) &
1382(a).

3

6

drive and went to the store once or twice a month. It would take her about thirty
minutes to get one or two items from a store. (Tr. 170). She claimed to have
trouble lifting, squatting, bending, standing, reaching, walking, sitting, climbing
stairs, and completing tasks. (Tr. 172). She could only walk for a few minutes
with a cane before needing to rest. (Tr. 172-73).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on July
9, 2012. (Tr. 30). She was forty eight years old at the hearing, unmarried, and
lived at home alone. (Tr. 34-35). She had two sons and five grandchildren. She
could no longer babysit her grandchildren due to her back problems, but they
visited her occasionally. (Tr. 36).
She last worked as a head cook in a nursing home, where she worked for
twelve years before injuring her back on the job. (Tr. 37). Plaintiff testified that
she slipped on water at work and caught herself during the fall which caused her
to rupture her back. She initially attempted to return to work, but was unable to
do so. (Tr. 38). The only work she performed in the last fifteen years was as a
cook. (Tr. 39). Plaintiff received workers’ compensation benefits for her injury
until 2011 when she received a settlement of approximately $150,000. (Tr. 40).
After her injury, plaintiff testified that she was confined to her recliner or
bed most of the day due to pain in her back and legs. (Tr. 41-42). She had not
sought work elsewhere. (Tr. 41). In June 2009, plaintiff stated that she had
surgery where two rods, two discs, six screws, and parts of her hip bone were

7

placed in her back. The surgery relieved some leg pain but her back pain
remained the same. (Tr. 42). Plaintiff attempted rehab and was doing well until
she injured her back further while carrying weights at therapy. (Tr. 44-45).
Thereafter, her doctors had her discontinue physical therapy. (Tr. 45).
On a typical day, plaintiff testified that she spends most of her time laying
down or in a recliner with her feet propped up. She made tea and TV dinners but
she had to sit down halfway through making either so that she could get pressure
off of her back. If she attempted to do dishes she would rest her elbows on the
counter to relieve some of the pressure. (Tr. 43-44). She testified that it took her
all day to perform typical tasks because she had to frequently stop and rest. (Tr.
47).
A vocational expert (VE) also testified. The VE testified that plaintiff’s past
work as a cook was classified as medium skilled work. (Tr. 49).
The ALJ asked the VE a hypothetical where she was to assume a person
with plaintiff’s vocational and educational background and could perform light
work but the person could only stand or walk for two hours in an eight hour
workday. Additionally, the person could only occasionally climb ladders, ropes,
scaffolds, stoop, kneel, crouch, or crawl. (Tr. 49). The VE testified that this
person could perform jobs with a restricted range of sedentary work that exist in
a significant number in the national economy. Examples of such jobs are clerical
addresser, security monitor, and small products sorter. (Tr. 76).

8

The VE testified that if the person could not tolerate eight hours of work a
day, five days a week, on a consistent basis and would require unscheduled
absences and breaks at will, no jobs existed in the national or regional economies.
(Tr. 50-51).
3. Medical Treatment
Plaintiff first presented to her treating physician’s assistant, Carol Weiler,
on June 17, 2007 complaining of back pain due to an injury at work the day
before. (Tr. 383). She was treated by her orthopedic surgeon, Lawrence
Leventhal, M.D., in October 2007. He prescribed physical therapy and
recommended suitable levels of work activity. (Tr. 240) That month, plaintiff
began physical therapy and continued regularly receiving treatment until January
2008. (Tr. 614-29).
From January 2008 through March 2008, plaintiff received epidural
injections. (Tr. 264, 266-67, 270-72, 277). She felt they helped improve her
symptoms at least 40%. (Tr. 344). In April 2008, Dr. Kenneth Wilkey, M.D.,
examined plaintiff and stated she was motivated to return to work and could
perform work at the light level. Plaintiff’s straight leg tests were negative and her
gait, motor, and sensation were normal. (Tr. 344-45).
Plaintiff began physical therapy again in March 2008 and continued until
September 2008. (Tr. 630-35, 637, 282-286, 296). She returned to Dr. Leventhal
several times complaining of the same continued back pain, with some progress
after therapy began. (Tr. 270-72, 277-80, 290-92). In August 2008, plaintiff

9

presented to Dr. Leventhal with a new popping and stinging sensation in her lower
back. (Tr. 299). Dr. Leventhal found tenderness in her low back, positive straight
leg raising at 70 degrees on the right while sitting, and flexion at 80% of normal
range. (Tr. 300).
In September 2008, plaintiff returned to Dr. Leventhal and stated that
physical therapy was no longer beneficial approximately two weeks prior. She had
burning down her right heel and difficulty walking. She rated her pain at a five to
six out of ten most of the time while on Darvocet and Medrol Dose Pack. (Tr.
307). Dr. Leventhal opined that plaintiff had reached a plateau with therapy and
determined it was no longer beneficial. (Tr. 310). X-rays showed bilateral pars
defects at L4-5 with grade 2 spondylolisthesis with flexion and extension. There
was increased stress reaction along the anterior aspect of L5 and the L4 vertebrae
was pivoting on the anterior corner of L5 with flexion. (Tr. 311). Dr. Leventhal felt
fusion at the L4-L5 level was probably needed. (Tr. 310). In October 2008,
plaintiff told Dr. Leventhal she wanted to consider surgery and she was referred
to a tertiary center. (Tr. 315).
Plaintiff had an MRI in November 2008 that revealed chronic bilateral L4
spondylosis and grade 1 anterior spondylolisthesis of L4 on L5 and associated
degenerative disc disease and facet arthropathy producing moderate L4-L5
foraminal stenosis. Plaintiff also had broad left-sided L5-S1 disc herniation
extending laterally into the left L5-S1 neural foramen. She had a mild chronic

10

anterior wedge compression fracture at T11 but no acute fracture identified. (Tr.
317).
Later that month, plaintiff saw neurosurgeon Charles Wetherington for an
evaluation. He felt plaintiff needed to receive injections in the right sacroiliac joint
before more aggressive treatment was attempted. (Tr. 319). Plaintiff received a
joint injection in December 2008, and an epidural steroid injection and nerve root
block twice in January 2009. (Tr. 326-27, 331, 335-36). Immediately following
the procedures plaintiff had significant improvement of the burning pain in her
legs. (Tr. 333). However, in March 2009, plaintiff reported no significant
improvements had been made with regard to her right-sided low back pain. (Tr.
337). The pain medicine physician, Dr. Brian Ogan, recommended further
injections. (Tr. 338).
Dr. Wilkey examined plaintiff again in May 2009. (Tr. 346-47). Plaintiff had
a limited range of motion in all planes, but had no neurological weaknesses. Dr.
Wilkey felt that because conservative treatment had failed, plaintiff was a good
candidate for surgery. (Tr. 346). He opined that plaintiff had an excellent attitude
and he thought she would try her best to return to work. He also stated it may be
difficult to find work due to plaintiff’s obesity and having not worked for a while.
Additionally, plaintiff would need at least three months to recover after surgery.
(Tr. 346-47). Dr. Wilkey opined that plaintiff could return to work with limitations
to lifting and carrying up to thirty pounds, and bending, twisting, sitting, standing,
pushing, pulling, and driving as tolerated. (Tr. 347).

11

Dr. Wilkey performed spinal fusion surgery on plaintiff in July 2009. (Tr.
339-41). Plaintiff was initially scheduled for a T-lift only at L4-5, however during
the procedure Dr. Wilkey observed severe osteoporosis and made a decision to
perform a T-lift at L3-4 as well. (Tr. 339). The L4-5 disc fragment had completely
degenerated and there was moderate to severe facet arthropathy at L3-4. (Tr.
340).

Post

operatively,

Dr.

Wilkey

diagnosed

plaintiff

with

grade

2

spondylolisthesis at L4-5. He prescribed pain medications and physical therapy.
(Tr. 351). In October 2009, plaintiff presented to Dr. Wilkey with at least 50%
improvement of pain. (Tr. 352). That December her pain levels were 70%
improved. Dr. Wilkey returned plaintiff to work activity with restrictions of lifting
no more than twenty pounds, working four-hour shift maximums, and bending,
twisting, sitting, and standing as tolerated. She was to work no more than four
hour shifts at a time. (Tr. 353).
In January 2010, Dr. Wilkey noted plaintiff sustained a setback and had
plateaued at her current state of function. She felt therapy had aggravated her
back pain and was taking four to five Darvocet a day. She had a waddling gait
with a cane, had soreness on the right buttock and posterior thigh. Her straight
leg test was negative. He had plaintiff discontinue therapy as she had done well up
until this point. He felt plaintiff could return to limited duty work with a thirty
pound carrying maximum, and sitting, standing, and twisting as tolerated. (Tr.
354).

12

In February 2010, plaintiff reported to the ER with increased pain. (Tr.
659). Her X-rays revealed that there was evidence of hardware failure and Dr.
Wilkey again noted she had plateaued. (Tr. 659). In April, Dr. Wilkey discontinued
therapy as he opined it may have aggravated her pain. Plaintiff had no radicular
symptoms and her straight leg test was normal. (Tr. 355). Dr. Wilkey released
plaintiff in September 2010 with permanent restrictions of bending, twisting,
sitting, standing, and driving as tolerated and limited lifting and carrying to thirty
pounds. (Tr. 357).
In February 2011, plaintiff saw Dr. Timothy Garrett, D.O., who noted she
had an unsteady gait, used a cane, and had tenderness and a limited range of
motion in her neck and back. He felt plaintiff was “probably operating at her
maximum” and was disabled. (Tr. 509).
4. Opinion of Treating Doctors
In April 2011, Dr. Garrett filled out a functional capacity assessment for
plaintiff. (Tr. 515-17). He felt plaintiff could not perform work that is more
demanding than the sedentary level. His diagnoses were failed back syndrome,
chronic pain, cervical arthritis, diabetes, peripheral neuropathy, and morbid
obesity. (Tr. 515). He opined that plaintiff’s impairments would cause pain and
fatigue that would require breaks from work that would total an hour or more in
the course of an eight hour workday. Additionally, plaintiff should avoid
concentrated exposure of extreme cold, heat, wetness, and humidity. She should
avoid even moderate exposure of hazards such as machinery or heights. (Tr. 516).

13

Dr. Garrett stated plaintiff’s impairments or treatment would cause her to be
absent from work more than three times a month. He reasoned that plaintiff’s
pain increases when she stands or walks and her pain medications impair her
ability to operate any machinery. (Tr. 517).
Later that month Dr. Wilkey completed a form stating that he agreed with
the opinions of Dr. Garrett. (Tr. 521).
5. RFC Assessment
State agency physician B. Rock Oh, M.D. assessed plaintiff’s RFC in
January 2011. (Tr. 501-07). He reviewed medical records but did not examine
plaintiff. He believed plaintiff could occasionally lift twenty pounds and frequently
lift ten pounds. He opined plaintiff could stand or walk for a total of two hours in
an eight hour workday, and sit for a total of six hours in an eight hour workday.
(Tr. 501). She was limited to occasional climbing of ladders, ropes, and scaffolds,
and occasional stooping, kneeling, and crouching. (Tr. 502).
This opinion was seconded by Dr. Lenore Gonzalez, M.D., of Disability
Determination Services (DDS) in April 2011. (Tr. 518-20).
6. Consultative Examinations
Dr. Raymond Leung, M.D., performed a physical consultative examination
in January 2011. (Tr. 474-80). Dr. Leung noted that plaintiff was morbidly obese
and brought a cane with her to the examination. (Tr. 475). With or without her
cane plaintiff’s gait was slow and she had a severe limp. She was able to walk fifty
feet unassisted, tandem walk, heel walk, and toe walk. She was unable to hop and

14

could only squat 3/4 of the way down. Plaintiff had a decreased range of motion in
her lumbar spine as forward flexion was limited to eighty-five degrees (Tr. 87577). Her straight leg raise was limited to fifty degrees bilaterally. (Tr. 476). Dr.
Leung’s impressions were hypertension, diabetes, and a history of lumbar fusion
at L3-4 and L4-5. (Tr. 476-77).
Dr. Harry Deppe, Ph.D., performed a psychological examination in January
2011. (Tr. 482-85). Dr. Deppe noted that plaintiff attended school until the tenth
grade when she became pregnant and began working. (Tr. 482). She was oriented,
her fund of general knowledge was good, and her abstract reasoning skills were
within normal limits. (Tr. 483-84). Dr. Deppe felt plaintiff had the ability to relate
to others, understand and follow simple instructions, perform simple repetitive
tasks, and withstand the stress and pressures associated with day-to-day work
activity. (Tr. 484-85). His diagnosis was adjustment disorder with mixed
emotional features, in remission. (Tr. 485).
Analysis
Plaintiff argues that the ALJ erred in his credibility assessment, RFC
determination, and did not have substantial evidence to support his decision. As
plaintiff relies in part on her testimony, the Court will first consider her argument
regarding the ALJ’s credibility analysis.
Plaintiff points out that the ALJ used the boilerplate language that has been
criticized in cases such as Minnick v. Colvin, 2015 U.S. App. LEXIS 249 (7th

Cir. 2015), Parker v. Astrue , 597 F.3d 920 (7th Cir. 2010), and Brindisi v.

15

Barnhart , 315 F.3d 783 (7th Cir. 2003). However, the use of the boilerplate
language does not necessarily require remand. The use of such language is
harmless where the ALJ goes on to support his conclusion with reasons derived
from the evidence. See, Pepper v, Colvin , 712 F.3d 351, 367-368 (7th Cir.
2013); Shideler v. Astrue , 688 F.3d 306, 310-311 (7th Cir 2012).
It is well-established that the credibility findings of the ALJ are to be
accorded deference, particularly in view of the ALJ’s opportunity to observe the
witness. Powers v. Apfel , 207 F.3d 431, 435 (7th Cir. 2000). “Applicants for
disability benefits have an incentive to exaggerate their symptoms, and an
administrative law judge is free to discount the applicant’s testimony on the basis
of the other evidence in the case.” Johnson v. Barnhart , 449 F.3d 804, 805 (7th
Cir. 2006).
The ALJ is required to give “specific reasons” for his credibility findings.

Villano v. Astrue , 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to
describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See
also, Terry v. Astrue , 580 F.3d 471, 478 (7th Cir. 2009)(The ALJ “must justify
the credibility finding with specific reasons supported by the record.”). If the
adverse credibility finding is premised on inconsistencies between plaintiff’s
statements and other evidence in the record, the ALJ must identify and explain
those inconsistencies. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
SSR 96-7p requires the ALJ to consider a number of factors in assessing
the claimant’s credibility, including the objective medical evidence, the claimant’s
16

daily activities, medication for the relief of pain, and “any other factors concerning
the individual’s functional limitations and restrictions due to pain or other
symptoms.” SSR 96-7p, at *3.
Although the ALJ considered a variety of factors in his analysis, his
credibility determination cannot be upheld. First, the ALJ considered plaintiff’s
activities of daily living. (Tr. 19). The Seventh Circuit has repeatedly held it is
appropriate to consider these activities but it should be done with caution. The
ability to perform daily tasks “does not necessarily translate into an ability to
work full-time.” Roddy v. Astrue , 705 F.3d 631, 639 (7th Cir. 2013). Plaintiff’s
daily activities can all be done with significant limitations and do not indicate she
can complete an entire workday or workweek. The ALJ noted plaintiff reported
she could do two small loads of laundry and visit with friends in her home.
Additionally, her sister stated she could prepare simple meals and do laundry.
While the ALJ does not state that he believes these activities make her able
to work, he fails to explain how they harm her credibility. First, these reported
activities cannot harm her credibility because, as plaintiff points out, they were
reported after the date when the ALJ determined plaintiff was disabled. (Tr. 19).
The ALJ found plaintiff to be disabled after February 5, 2010 and her function
report was dated November 7, 2010. Her activities would therefore have to
support his conclusion that she was disabled at this point. Second, Plaintiff
correctly notes that the ALJ failed to note how her statements were false or not
corroborated by the record. He was required to explain how any of her reported

17

activities were not supported by the medical evidence. Bjornson v. Astrue, 671
F.3d 670, 647 (7th Cir. 2012)(Stating an ALJ “must explain perceived
inconsistencies between a plaintiff’s activities and the medical evidence.”).
The next portion of the ALJ’s credibility analysis focuses on plaintiff’s
treatment history. He first looks at improvements plaintiff made during the
course of treatment prior to February 5, 2010. However, as plaintiff points out,
The ALJ’s analysis concentrates solely on portions of the record that support his
claim plaintiff was not disabled. For example, he stated that plaintiff improved
with physical therapy, an exercise program, and aqua therapy but failed to
acknowledge that the doctor added plaintiff was not ready to return to work on
that same page. (Tr. 298).
The ALJ states that while plaintiff considered surgery her records show
regular improvement. However he fails to reconcile how plaintiff had plateaued
with physical therapy in September 2008 and the instability within her back made
further therapy not beneficial. (Tr. 307). The ALJ does not discuss how plaintiff
had decreased flexion and extension on several occasions. (Tr. 308, 320, 328).
The Seventh Circuit has “repeatedly held that although an ALJ does not need to
discuss every piece of evidence in the record, the ALJ may not analyze only the
evidence supporting her ultimate conclusion while ignoring the evidence that
undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
The ALJ also focused on the portions of the record that indicated plaintiff
could perform light duty work. The first reference the ALJ makes to “opinions

18

that she could return to light work” he cites a portion of the record from before
plaintiff’s alleged onset date. He then looks to opinions of Dr. Wilkey that plaintiff
could return to work with a thirty pound lifting restriction and limitations of
sitting, pushing, pulling, driving, and twisting as tolerated. As plaintiff points out,
these limitations are the exact same that Dr. Wilkey gave plaintiff in September
2010, well after the ALJ had determined plaintiff was disabled. (Tr. 357). The
ALJ makes no attempt to explain how Dr. Wilkey’s opinion that plaintiff could
work became less persuasive, or was less credible, after February 2010.
The ALJ relies heavily on Dr. Wilkey’s opinions that plaintiff could perform
light duty work with some restrictions. However, again, he picks and chooses
which portions of the record to discuss within his credibility determination. For
example, Dr. Wilkey stated that plaintiff was unable to perform any work after her
surgery for at least six weeks, and kept her on a work restriction that reflects this
suggestion. (Tr. 347, 351, 352). At the earliest, he felt plaintiff could return to fulltime work three months post-operatively. (Tr. 347). December 2009, five months
after plaintiff’s surgery, was the first time Dr. Wilkey suggested plaintiff could
return to any work, and he restricted her to four hour shifts at maximum. (Tr.
353). The ALJ references this specific doctor’s note in stating plaintiff had 70%
improvement, but fails to acknowledge the portion that significantly limits
plaintiff’s ability to work. (Tr. 19).
As plaintiff notes, these work restrictions do not support a finding
consistent with full-time sedentary work. The VE testified no jobs existed if

19

plaintiff could not maintain work for eight hours a day, five days a week. (Tr. 5051). The Seventh Circuit has also noted that, “a person who cannot work eight
hours a day, five days a week, or the equivalent, is disabled.” Roddy, 705 F.3d at
636. Plaintiff was therefore, by definition, disabled for a portion of the relevant
time. Since the ALJ relied heavily on Dr. Wilkey’s work restrictions, he could have
explained why he rejected this portion of the record or how plaintiff was not
disabled in spite of it. Instead, he chose to ignore it entirely. This is error.
The ALJ is “required to build a logical bridge from the evidence to his
conclusions.”

Simila v. Astrue , 573 F.3d 503, 516 (7th Cir. 2009).

ALJ

Scurry simply failed to do so here. “If a decision ‘lacks evidentiary support or is
so poorly articulated as to prevent meaningful review,’ a remand is required.”

Kastner v. Astrue , 697 F.3d 642, 646 (7th Cir. 2012), citing Steele v.
Barnhart , 290 F.3d 936, 940 (7th Cir. 2002).
It is not necessary to address plaintiff’s other points, but, as in Pierce , the
determination of the weight to be given to plaintiff’s treating physicians’ opinions
and of plaintiff’s RFC will require “a fresh look” after reconsideration of plaintiff’s
credibility. Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014).
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff is disabled or that
he should be awarded benefits. On the contrary, the Court has not formed any
opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.

20

Conclusion
Plaintiff’s motion for summary judgment is granted. The Commissioner’s
final decision denying Marjorie Bare’s application for social security disability
benefits is REVERSED and REMANDED to the Commissioner for rehearing and
reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.

DATE: January 27, 2014.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

21